APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MITCH PERRY,
JUDGE NO. 13-CR-002075
COUNSEL FOR APPELLANT: Susan Jackson Balliet Assistant Public
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky James Daryl Havey Assistant Attorney General.
Steven Zapata, entered a plea under North Carolina v.
Alford, 400 U.S. 25, 91 (1970), to one count of murder.
In accordance with the plea agreement, the trial court
sentenced Zapata to 24 years' imprisonment. He appeals to
this Court as a matter of right, Ky. Const. § 110(2)(b),
and argues that the "trial court erred by resolving an
involuntary plea issue without taking evidence and without
appointing conflict-free counsel."
Jefferson County Grand Jury indicted Zapata on one count of
murder for his wife's death. Before trial, he made a
motion under Faretta v. California, 422 U.S. 806
(1975), to be appointed as "co-counsel" in order to
"assist his [counsel] in his
defense." The trial court granted Zapata's
request to act as hybrid counsel.
trial, Zapata entered an Alford plea to one count of
murder. "Due process requires a trial court to make an
affirmative showing, on the record, that a guilty plea is
voluntary and intelligent before it may be accepted."
Edmonds v. Commonwealth, 189 S.W.3d 558, 565 (Ky.
2006) (citing Boykin v. Alabama, 395 U.S. 238,
241-42 (1969)). The trial court conducted the Boykin
colloquy and explained that Zapata was waiving the right to
challenge the evidence, cross-examine witnesses, and offer
evidence in his defense. The court instructed Zapata that if
he entered a guilty plea, "the case is over" and he
could not appeal. Zapata agreed that the Commonwealth had
evidence to prove that he had killed his wife and went ahead
with the plea.
before sentencing, Zapata's counsel submitted a motion to
withdraw that plea, though she indicated "undersigned
counsel takes no position on this motion." Zapata filed
another motion to withdraw his plea and for an evidentiary
hearing under Edmonds. He asserted an evidentiary
hearing "is required when, as here, a defendant makes an
allegation of ineffective assistance of counsel that cannot
be resolved from referral to the record." At the hearing
on the motion, Zapata argued, among other things, that his
counsel deceived him when she informed him he could withdraw
his plea any time before sentencing with "no
problem" and that his plea was not voluntarily entered.
The trial court conducted a hearing on the motion; however,
it did not take sworn testimony or allow Zapata to call
witnesses or present other evidence.
argues that he was denied counsel concerning his motion to
withdraw his guilty plea. As the United States Supreme Court
held, "a trial is unfair if the accused is denied
counsel at a critical stage of his trial." United
States v. Cronic, 466 U.S. 648, 659 (1984). This Court
recently held that "a pre-judgment proceeding at which a
defendant seeks to withdraw his guilty plea is a critical
stage of the proceedings at which he is entitled to the
assistance of counsel." Commonwealth v. Tigue,
459 S.W.3d 372, 382 (Ky. 2015). Furthermore, "prejudice
is presumed when counsel is burdened by an actual conflict of
interest, " Strickland v. Washington, 466 U.S.
668, 692 (1984) (citing Cuyler v. Sullivan, 446 U.S.
335, 345-350 (1980)).
trial counsel did prepare a motion for him to withdraw his
plea and was present at the hearing on that motion. However,
she stated that Zapata's allegations toward her
concerning the guilty plea put her in an awkward position.
However, she pointed the trial court to this Court's
decision in Tigue, 459 S.W.3d at 389, and insisted
her client had a right to representation. She did note that
she was unsure of how the fact that Zapata was acting as
hybrid counsel complicated the matter. Counsel indicated that
she would only answer the questions the trial court ordered
her to answer, but "in the interest of representing
him" it was "not prudent to offer responses to
those accusations." When the trial court told the
parties they should brief the issue, Zapata's counsel
trial court determined that, while Zapata had the right to a
lawyer at a motion to withdraw a guilty plea, his current
counsel fulfilled that role. When Zapata's counsel asked
the trial court if she could "effectively do that . . .
under the circumstances, " the court stated that Zapata
was representing himself "at least in part."
Therefore, the trial court proceeded with the hearing on the
motion to withdraw the plea. Zapata did not ask for
substitute counsel due to his current counsel's conflict.